You may think that, once you have made your Will, you can sit back content in the knowledge that, upon your death, your estate will pass to precisely whom you wish, be they your family, friends or the local cats home. You should be right. Clearly you should have the right to choose that your hard earned savings and assets pass to whomever you see fit. In certain circumstances, however, unless the correct advice is sought and the appropriate steps taken, this right can be compromised. It is for this reason (and in particular if you wish to distribute your estate in a way that may leave certain expectant people disappointed) that you should seek expert legal advice as to the drafting of your Will.
It would probably be fair to say that the majority of individuals simply wish to leave their estate to their surviving family, be that their spouse, children and grandchildren or perhaps more distant family. That is not to say, however, that this is always the case or, indeed, should be. Many people wish to exclude their family for perfectly valid reasons and are entitled to do so by way of their Will. When making such a gift, however, the person making that Will (“the Testator”) will be aware that, upon their death when the contents of the Will are revealed, some controversy may be caused. If the appropriate steps have not been taken during the drafting of that Will then this leaves open the possibility that disappointed beneficiaries may be able to challenge the contents and ultimately, if that challenge is successful, the estate may pass to the very people whom the testator wished to exclude.
So, on what grounds are Wills commonly challenged and how can such a challenge be avoided or defeated? One possibility is that the disappointed beneficiaries will claim that, when the testator gave the instructions for and signed their Will, they did not have the ‘requisite testamentary capacity', i.e. they were suffering from an impairment that meant that they were not aware of their actions or the implications of the same. A common example of this would be Alzheimer's disease. When taking instructions for a Will, a solicitor will ask various questions designed to demonstrate that a testator does, indeed, have the requisite capacity. Moreover, it is good practice if a client wishes to make a Will containing what could be deemed as ‘controversial' bequests (particularly when that client is elderly) to obtain a medical opinion (for example from a testator's general practitioner) as to their ‘mental capacity' at the time of signing the Will. This then avoids any doubt in the future and provides external, objective and expert opinion as to the testator's state of mind. It is our experience that, rather than take offence at the suggestion, our clients are reassured that the step has been taken to ensure that their estate passes according to their wishes.
For information on will writing lawyer Swindon look at the website for these Swindon Solicitors.